Allowed

Rajubhai Babubhai @ Kishanbhai Chunara v. Commissioner of Police

Gujarat HC16 Apr 2018SCA/1539/2018

Case brief

AI extract

What is this about?

The High Court allowed a special civil application challenging a detention order under the Gujarat Prevention of Anti-Social Activities Act. It held that mere registration of FIRs for robbery and theft does not constitute a threat to public order justifying preventive detention.

What did the court decide?

Order of detention dated 5.12.2017 quashed and set aside; petitioner set at liberty forthwith.

Rajubhai Babubhai @ Kishanbhai Chunara Vs… — Pension and Retirement Benefits | Gujarat HC (2018)

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C/SCA/1539/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 1539 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G. SHAH

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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RAJUBHAI BABUBHAI @ KISHANBHAI CHUNARA

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Versus COMMISSIONER OF POLICE

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Appearance:

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J M TALOTA(7443) for the PETITIONER(s) No. 1 MR ROHAN YAGNIK, AGP for the RESPONDENT(s) No. 2 GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 3 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH

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Date : 16/04/2018 ORAL JUDGMENT

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1. Heard learned counsel for the parties.

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2. This petition is directed against the order of detention dated 5.12.2017 passed by respondent No.1, in exercise of powers

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Page 1 of 6

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C/SCA/1539/2018 JUDGMENT

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conferred under section 3(2) of the Gujarat
Prevention of Anti Social Activities Act,
1985 [for short ‘the Act’] by detaining the
detenu as a “dangerous person” as defined
under section 2(c) of the Act.

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3.Learned advocate for the detenu submits that
the order of detention impugned in this
petition deserves to be quashed and set aside
and the ground that the registration of two
offences by itself cannot bring the case of
the detenu within the purview of definition
of “dangerous person” under Section 2(c) of
the Act. Learned counsel for the detenu
further submits that the illegal activity
carried out as alleged, cannot have any nexus
or bearing with the maintenance of the public
order and at the most it can be said to be
breach of law and order. Further, except
statements of witnesses and registration of
FIRs, no other relevant or cogent material is
available on record connecting the alleged
anti-social activities of the detenu with
breach of the public order.

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4.Learned counsel for the detenu, placing
reliance on the decisions reported in the
cases of [i]Ranubhai Bhikhabhai Bharwad
[Vekaria] v. State of Gujarat reported in
2000[3] GLR 2696, [ii] Ashokbhai Jivraj @

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Page 2 of 6

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C/SCA/1539/2018 JUDGMENT

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Jivabhai Solanki v. Police Commissioner,
Surat reported in 2000[1] GLH 393; and [iii]
Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta,
reported in [1995] 3 SCC 237, submitted that
the case on hand is squarely covered by the
ratio laid down in the aforesaid decisions.
Learned counsel for the detenu further
submits that it is not possible to hold in
the facts of the present case that the
activities of the detenu with reference to
the criminal case/s had affected even tempo
of the society, posing a threat to the very
existence of the normal and routine life of
the people at large or that on the basis of
the criminal case/s, the detenu had put the
entire social apparatus in disorder, making
it difficult for whole system to exist as a
system governed by the rule of law by
disturbing the public order.

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5.Learned AGP for the respondent – State
supported the detention order passed by the
authority and submitted that the detenu is a
dangerous person and sufficient material and
evidence was found during the course of
investigation, which was also supplied to the
detenu, indicating that the detenu is in
habit of indulging into activities as defined
under Section 2(c) of the Act and considering
the facts of the case, the detaining

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C/SCA/1539/2018 JUDGMENT

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authority has rightly passed the order of
detention and the detention order deserves to
be upheld by this Court.

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6.Having heard the learned counsel for the
parties and considering the facts and
circumstances of the case, it appears that
the subjective satisfaction arrived at by the
detaining authority cannot be said to be
legal, valid and in accordance with law
inasmuch as the offences alleged in the FIRs
cannot have any bearing on the public order
since the law of the land i.e. Indian Penal
Code and other relevant penal laws are
sufficient enough to take care of the
situation and that the allegations as have
been levelled against the detenu cannot be
said to be germane for the purpose of
bringing the detenu as a dangerous person
within the meaning of section 2(c) of the Act
and, unless and until the material is there
to make out a case that the person concerned
has become a threat and a menace to the
society so as to disturb the whole tempo of
the society and that the whole social
apparatus is in peril disturbing public order
at the instance of such person, it cannot be
said that the detenu is a dangerous person
within the meaning of Section 2(c) of the
Act. Except general statement, there is no

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Page 4 of 6

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C/SCA/1539/2018 JUDGMENT

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material on record which shows that the
detenu is acting in such a manner which is
dangerous to the public order. In view of the
ratio laid down by the Hon’ble Supreme Court
in the cases of [i] Ranubhai Bhikhabhai
Bharwad (supra), [ii] Ashokbhai Jivraj @
Jivabhai Solanki (supra) and [iii] Mustakmiya
Jabbarmiya Shaikh (supra), the Court is of
the opinion that the activities of the detenu
cannot be said to be dangerous to the
maintenance of public order and at the most
fall under the maintenance of “law and
order”.

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7.In view of the above, I am inclined to allow
thispetitionbecausesimplicitor
registration of FIR by itself cannot have any
nexus with the breach of maintenance of
public order and the authority can take
recourse under the Indian Penal Code and no
other relevant or cogent material exists for
invoking powers under Section 3(2) of the
Act.

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8.If we peruse the citations, it becomes clear
that even the Hon’ble Supreme Court has
considered that detention is not permitted
even in the case of robbery and theft. The
present is the case of sections 380 and 511
of the Indian Penal Code. Therefore, the

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C/SCA/1539/2018 JUDGMENT

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Court has no option but to allow the
petition.

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9. The petitioner has argued on merits on FIRs, referring certain judgments. However, discussion of such facts, prima facie at this stage, is not warranted since it may otherwise prejudice the trial.

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10. However, since all such order/s are quashed on technical ground, the same shall not come in the way of the detaining authority to pass an appropriate order in future.

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11. In the result, the petition is allowed. The order of detention dated 5.12.2017 passed by the respondent No.1 is quashed and set aside. The detenu is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute accordingly. Direct service permitted.

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(S.G. SHAH, J)

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binoy

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Rajubhai Babubhai @ Kishanbhai Chunara v. Commissioner of Police

Case brief

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Rajubhai Babubhai @ Kishanbhai Chunara v. Commissioner of Police

Case brief

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